Menter & Rosenbloom Co. v. Gray

Motions (1) to make petition more definite and certain, and (2) to strike out.

This is an action upon a contract for stipulated sum as liquidated damages for breach. As the action is not for a quantum meruit, but for an agreed sum in the nature of a penalty, it is a “special contract,” and must be set forth in terms, or so much thereof as is involved in the cause of action, and is necessary to show a complete legal contract. City of Lancaster v. Miller, 58 O. St., 558 (569).

The petition is not aided by attaching a copy of the contract as an exhibit. The pleading, as such, must stand or fall by its own allegations.

See, also, Statute of Frauds, R. S., Section 4199.

(1) The motion to make definite will be granted.

Being an action upon a contract, it is only necessary to set forth the facts constituting the breach. All beyond this is surplusage in pleading.

(2) The motion to strike out parts designated, will be granted.

Motion granted.